PROVIDENT FUND COMMISSIONER PENSION BHOPAL AND RAIPUR vs BAL SWAROOP

THIS appeal is heard by this Single Bench constituted specially by the President of this Commission to hear appeals arising out of order passed by the District Forum, Bhopal in which Member of this Commission, Smt. Neerja Singh has participated in the proceedings as Member of the District Forum (as she then was ).

THIS appeal is by opposite party-the Regional Provident Fund Commissioners, Bhopal and Raipur requiring them to carry out certain corrections in the pension payment order of respondent No. 1, a former employee of respondent No. 2-M/s. Bharat Aluminium Company Limited. The dispute is mainly regarding date of birth which is recorded as 1. 7. 1945 while according to the respondent-complainant ought to be 18. 12. 1944 and so the pension should commence from 1. 1. 2003 not from 1. 7. 2003 as sanctioned by the appellants. The respondent has also disputed the nature of the pension. While the appellants have sanctioned it to be a short service pension, the respondent claims superannuation pension. The Forum below allowed the complaint on both the counts directing the appellants to grant superannuation pension w. e. f. 1. 1. 2003 to respondent No. 1-complainant. As regards the age, it may be noted at the outset that as per appellant''s own showing and as noted by them in the pension payment order, the respondent No. 1-comployee retired on superannuation on 31. 12. 2002. Since the age of superannuation was 58 years, the date of birth of respondent No. 1 would fall in the month of December, 1944 not in July, 1944 (an employee is always retired on the last day of the month of his superannuation ). Respondents have filed and proved in evidence the copies of the service book entries as also the High School Examination Certificate of 1962 of the complainant. In both these documents his date of birth is recorded 18th December, 1944. The High School Examination Certificate pertains to the period much prior to the respondent-complainant joining the service of the respondent No. 2 and there could be, thus, no doubt as to its genuineness. Entry in the service book was also made way back in the year 1980 when the complainant joined service of respondent No. 2. Both the documents are corroborated further by the oral evidence of the complainant adduced on affidavit which remains wholly unchallenged or unrebutted by the appellants.

Appellants'' case stands on a very shaky wicket. They have never tried to find out the actual date of birth of the complainant and instead worked out the same on the basis of an information forwarded to them by respondent No. 2-employer in Form 4 (F) required to be submitted under paragraph 15 (4) of the Employees Pension Scheme, 1995. The copy of the said form is filed and proved in evidence by the appellants. In fact, this form pertained to many more employees of respondent No. 2 besides the complainant. While the form contained no column for disclosure of date of birth of an employee, its column No. 5 provides for the information regarding age of the employee at his entry point. In this column, the age of respondent No. 1 at the entry was shown 35 years and since he joined service on 1. 7. 1980 the appellants worked out his date of birth as 1. 7. 1945, as if the complainant was exactly of 35 years of age on the date of his entry in the service. Needless to say that the information regarding age was only estimated one and so even a person borne on any date during the year 1944-45 would have the same age i. e. 35 years in the year 1980 when he joined the service. This was a very crude method of working out the date of birth of the complainant. Needless to say that while calculating the pension, it was the duty of the appellants to have found out the exact date of birth of the complainant employee.

PARA 17-A of the Scheme 1995 enjoined a duty on the appellants to make necessary inquiry and if there is any deficiency in the claim, the same was required to be recorded in writing and communicated to the respondent-applicant within 30 days. In the instant case, there was obvious discrepancy regarding date of birth in the claim of the respondent-complainant and the record of the appellants. Needless to say that an inquiry by the appellants with due diligence would have made the things clear. As already pointed out there is crying evidence available on record to show that the actual date of birth and as recorded in the service record of the respondent-complainant is 18th December, 1944 not 1. 7. 1945 as worked out by the appellants. The Forum below in my view, was therefore absolutely right in holding that the date of birth mentioned in the pension payment order is wrong and required to be corrected. Mr. S. K. Menon, learned Counsel for appellants has vehemently urged that no direction for correction of age can be given by any Court or Forum. He has heavily relied on two decisions of the Kerla State Consumer Disputes Redressal Commission rendered in Appeal Nos. 452/2000, The Regional Provident Fund Commissioner v. K. Sadasivan, and No. 685/2004, The Regional Provident Fund Commissioner v. Thinnamma. We are, however, not persuaded by the argument. The ratio of the said two decisions, we are afraid, is not available to the appellants in the facts and circumstances of the present case. It was a clear case of mistake on the part of appellants in working out the date of birth of the complainant and the Forum below was, therefore, right in directing them to rectify their own mistake. It is not the case where an employee is seeking change of his date of birth. It is a case where some mistake is committed by the appellants and the respondent is, therefore, entitled to seek its rectification.

AS regards the nature of pension, para 12 of the Scheme 1995 defines the term "superannuation pension" and "short service pension". As per Clause (a) of para 12 (1), a member shall be entitled to "superannuation pension" if he has rendered eligible service of 20 years or more and retire on attaining the age of 58 years. As per Clause (c) of this para, he would be entitled to "short service pension" if he has rendered eligible service of 10 years or more, but less than 20 years. In the instant case, as per appellants'' own showing the respondent retired on completing age of superannuation (58 years) and he had put in past service of 15 years upto 15. 11. 1995 when he joined the scheme and pension able service of 7 years before joining the same. Thus, he had put in 22 years eligible service and retired on attaining age of 58 years. That being so, he was entitled to superannuation pension not short service pension as granted by the appellants. On this count also, the order passed by the Forum below calls for no interference. The Forum below has also awarded general damages Rs. 5,000, besides cost of Rs. 1,000. It is, however, seen that interest @ 9% p. a. has also been allowed on the difference amount of pension from 1. 1. 2003. In my considered judgment, the award of interest alone was sufficient to compensate the complainant and meet the ends of justice. I, thus, allow the appeal in part and delete the direction for payment of compensation of Rs. 5,000. However, rest of the order of the District Forum shall remain unaltered. I also make no order as to the cost of this appeal. Appeal partly allowed.